Recently Asked Q&A from Clapham & Collinge Family Law team.

Recently Asked Q&A from Clapham & Collinge Family Law team.

Q. How can I ensure I get my fair share in a divorce?

A. Make sure you see a specialist family Solicitor who is part of Resolution. Obtaining a divorce settlement in the right terms is vital and it is important that you have the right person or people working with you. There is only one "bite of the cherry" so getting this right is very important.

Q. How do I ensure my children get what I want them to get following my divorce? How do I protect what they're entitled to

A. When a divorce takes place the needs of children are a vital priority. The Family Court will take into account those needs but after a financial settlement is concluded it is left to individual parents to make sure they provide for the children and ensure they get what they want them to have following the divorce. Complications in particular arise when parents form new relationships and have children from that new relationship or marriage.

The starting point is making a Will to have provision for your children. Also if investing money in property with another person (e.g. a new partner or new spouse) it is important to look at things like Declarations of Trust dealing with joint ownership as new relationships do not always work and that could mean that a new partner might be entitled to a share in property that you would want your children to have had. If you live with a new partner having a Cohabitation Agreement would be advisable but most importantly if you intend to remarry a Pre-Nuptial Agreement could be essential. This could set out that you wish to "ring fence" any assets that you receive from your divorce that you wish to ensure your children benefit from and not your new spouse or his/her children or family.

Q. Will I have to go to court to finalise my divorce?

A. The procedure for an actual divorce is straightforward so long as the husband and wife agree and co-operate. It is now usually unnecessary to attend Court at all. However if there is a disagreement over finances or your children a Hearing might be necessary to deal with those aspects.

Q. If I'm talking about my provisions in a divorce in a court, can it be publicly reported in a newspaper?

A. It is very unusual for this to happen. Proceedings "in chambers" are private unless the Court allows reporting.

Q. Why should I use a solicitor instead of an online divorce service?

A. Most Solicitors will be able to give you a tailored service that is personalised to you and you have the reassurance of being able to ask questions. Many Solicitors will offer a fixed fee for an actual divorce which may be higher than the cost of an online divorce service but you need to decide what type of service you want and what is included (or not included) in the online divorce service.

Q. Does a Prenuptial Agreement have to be fair to be legally binding?

A. Pre-nuptial agreements are not yet automatically binding but they are likely to be upheld by the Court as long as there isn't anything clearly unfair about the agreement reached. For a pre-nuptial agreement to have the best chance of being upheld, certain conditions have to be met when they are prepared;

  • Both parties received their own independent legal advice on terms and effect of the agreement.
  • There was full and frank disclosure of financial information for both parties, with no assets unknown or hidden.
  • The agreement was entered into in good time before the wedding, at least 21 days.

There also needs to be no suggestion that either party was pressured into entering into the agreement or that they did so against their will.

Once a pre-nuptial agreement has been entered into, it may need to be reviewed and amended throughout the marriage to take into account any change in circumstances. Significant changes, such as the birth of a child, may impact on the fairness of the original agreement.

Q. Does getting a divorce impact your will?

On divorce your Will will remain valid. However, your former spouse will be treated as if they had predeceased you and therefore he or she would not receive anything under your Will. The back-up provisions to that gift as set out in your Will would apply instead. However, it is worth noting that should you have left everything to your former spouse in your Will, then your Estate would be treated as though you died intestate and the rules of intestacy would apply to the distribution of your Estate. See our 'Making a Will' page for more information.

To find out more or discuss your individual requirements in further detail, our dedicated Family Law solicitors will be delighted to help. Contact us today on 01603 693500 or email us using the 'Make an enquiry' form. Appointments available at our Norwich, North Walsham and Sheringham offices.